Colorado’s ruling against Trump raises questions that only the Supreme Court can answer

(Kent Nishimura/Los Angeles Times)

Colorado’s ruling against Trump raises questions that only the Supreme Court can answer

Opinion piece, Elections 2024

Erwin Chemerinsky

Dec. 20, 2023

The Colorado Supreme Court has done the country a tremendous service by ruling that Donald Trump is ineligible to become president and by squarely referring the constitutional question to the U.S. Supreme Court. The Supreme Court must hear the case and quickly decide whether to bar Donald Trump from the vote. because of Section 3 of the 14th Amendment. It would be a political nightmare to resolve this issue after Trump wins the Republican nomination, or worse, after he is elected president.

Section 3 of the 14th Amendment explicitly prohibits anyone who has previously taken an oath of office from holding public office if he has “engaged in insurrection or rebellion” against the United States. The provision was passed to prevent Confederates from holding federal office in the Civil War.

The judges will have to decide whether this provision applies to Trump as a former president, what constitutes an insurrection, and whether Trump participated in it.

Some, including the dissenting chief justice of the Colorado Supreme Court, say it should be left to the political process to decide who will be the next president of the United States. But that position would effectively override all other constitutional provisions that limit who can become president. Article II of the Constitution states that the president must be 35 years of age, a natural-born citizen, and a resident of the United States for 14 years. Failure to meet these qualifications would eliminate a potential candidate. Section 3 of the 14th Amendment is no different.

Some have wondered whether renouncing Trump in a vote would violate the political issue doctrine, which requires the court to stay out of certain political controversies. But that teaching is often misunderstood. It in no way prohibits the court from ruling in cases involving elections, which can of course determine the election outcome.

For example, the Supreme Court ruled in 1962 that federal courts may object to state redistricting plans, rejecting the argument that this is a political issue not amenable to judicial review.

In 2010, the judges ruled in Citizens United vs. Federal Election Commission that corporations have the right to spend unlimited amounts on political campaigns, even though that undoubtedly determines many elections. In 2013, the court ruled in Shelby County vs. Holder unconstitutional a crucial provision of the Voting Rights Act of 1965, which certainly changed the outcome of many elections. Most dramatically, in

Bush vs. Gore, in 2000 the court effectively decided the outcome of the presidential election.

The political question doctrine only comes into play in a much more limited situation: when the Constitution entrusts the issue to the other branches of government to resolve.

For example, the Court has often said that challenges to the president’s conduct in foreign policy are generally political issues. That’s why the country has refused to hear lawsuits challenging the constitutionality of the Vietnam War. Sometimes the court has said that an issue is a political issue because there is no way for the judiciary to formulate principles to decide what is unconstitutional. In Rucho vs. Common Cause told the court in 2019 that it could not determine whether partisan gerrymandering, in which a political party draws districts to maximize the number of safe seats for that party, as opposed to, for example, racial gerrymandering, is unconstitutional because there is no way for it to a court to resolve what is too much use of politics.

But resolving the meaning of Section 3 of the 14th Amendment does not involve inventing new principles. It requires the court to apply standard methods of constitutional interpretation, even if this is an unprecedented case.

What the Supreme Court will do is certainly not a foregone conclusion. Several justices describe themselves as originalists who believe that the key to interpretation is following the original meaning of a constitutional provision. Conservative law professors William Baude and Michael Paulsen have looked at Section 3 from an originalist perspective and concluded that if the public record is correct, the case isn’t even close: Trump was engaged in an insurrection and is ineligible to run for president .

I believe that the Colorado court got it right in interpreting Section 3. But most importantly, its decision provides the U.S. Supreme Court with a means to quickly decide the issue. It is also important to resolve this issue for the entire country, rather than having it litigated in many different states or having the decision made by election officials. The nation’s interests require it to hear the case and decide whether Trump is ineligible to become president.

Erwin Chemerinsky is dean of the UC Berkeley School of Law. He was one of several constitutional law professors who filed a friend-of-the-court brief with the Colorado Supreme Court seeking to disqualify Donald Trump from the Colorado ballot.


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